Mackey v. Atoka

• Decision Date: 12 September 1912
• Citation: 126 P. 767,34 Okla. 572,1912 OK 587
• Parties: MACKEY v. ATOKA ET AL.
• Court: Oklahoma Supreme Court

126 P. 767

34 Okla. 572, 1912 OK 587

MACKEY v. ATOKA ET AL.

Supreme Court of Oklahoma

September 12, 1912

Syllabus by the Court.

An order or judgment of a county court in dismissing a petition for the revocation of the probate of a will is an appealable order, under subdivision 8 of section 5451, Comp. Laws 1909. The appeal lies to the district court.

Commissioners' Opinion. Division No. 1. Error from District Court, Latimer County; Malcolm E. Rosser, Judge.

Action by Forbes Mackey against Betsie Atoka and Simon Atoka to set aside the probate of a will. Judgment for defendants, and plaintiff brings error. Reversed and remanded.

Welch & Cruthis, of Talihina, for plaintiff in error.

Chas H. Hudson, of Wilburton, for defendants in error.

ROBERTSON C. (after stating the facts as above).

It is conceded by counsel for both parties that there is but one question in this case for the consideration of this court and that is: "Will an appeal lie from the county court to the district court, on an order dismissing a petition praying for the revocation of the probate of a will?" We think an appeal will lie in such case. Section 16 of article 7 of the Constitution of Oklahoma (Williams' Const. p 84), reads as follows: "Sec. 16. Until otherwise provided by law, in all cases arising under the probate jurisdiction of the county court, appeals may be taken from the judgments of the county court to the district court of the county in the same manner as is now provided by the laws of the territory of Oklahoma for appeals from probate court to the district court, and in all cases appealed from the county court to the district court, the cause shall be tried de novo in the district court upon questions of both law and fact." At the time of the adoption of the Constitution, the law of the territory of Oklahoma governing appeals from the probate court was found in section 317, c. 22, art. 13, Wilson's Annotated Statutes Okla. 1903 (section 5451, Comp. Laws 1909), which reads as follows: "An appeal may be taken to the district court from a judgment, decree or order of the county court: (1) Granting, or refusing, or revoking letters testamentary or of administration, or of guardianship. (2) Admitting, or refusing to admit, a will to probate. (3) Against or in favor of the validity of a will or revoking the probate thereof. (4) Against or in favor of setting apart property, or making an allowance for a widow or child. (5) Against or in favor of directing the partition, sale or conveyance of real property. (6) Settling an account of an executor, or administrator or guardian. (7) Refusing, allowing or directing the distribution or partition of an estate, or any part thereof or the payment of a debt, claim, legacy or distributive share; or from any other judgment, decree or order of the county court, or of the judge thereof affecting a substantial right."

Counsel for defendants in error relies on subdivision 3 of section 5451, supra, as supporting his contention, and cites Estate of Sbarboro, Deceased, 70 Cal. 147, 11...